Feinstein, Durbin dangerously close to pushing religious test on judge

Feinstein, Durbin dangerously close to pushing religious test on judge
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One of the prides of this country is the way we approach matters of religion related to individuals, government and society. In one of the last cases she addressed as a Supreme Court Justice, Sandra Day O'Connor commented that we have a system in place regarding religion in this country that we never would want to exchange with any other country on earth.

What she was referring to was the unique balance established by the First Amendment — the separation of church and state, the protection of the free exercise of religion — and by Article Six of the Constitution — the rejection of any religious qualification for public office. All of which presents an opportunity for religion to flourish and for government to maintain independence from religion and religion to maintain its independence from government.

All of this comes to mind as the latest controversy about the role of religion in America bubbled to the surface with the line of questioning by Senators Dianne FeinsteinDianne Emiel FeinsteinGun proposal picks up GOP support Gingrich: Banning rapid fire gun modification is ‘common sense’ House bill set to reignite debate on warrantless surveillance MORE (D-Calif.) and Dick DurbinRichard (Dick) Joseph DurbinGun proposal picks up GOP support Durbin: I had 'nothing to do' with Curbelo snub Republicans jockey for position on immigration MORE (D-Ill.) of Federal Appeals Court nominee Amy Coney Barrett. Both raised Barrett’s religious beliefs in a way that set off alarm bells.

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Clearly, both senators were concerned, in light of White House positions, about the future of the rights of women to make decisions about abortion as well the treatment of the LGBT community. Knowing full well that the candidate, like other judicial nominees, would not tip her hand as to how she would vote on specific cases, the senators probed the sensitive area of how her religious views would affect her decision-making on the bench.

It is one thing for an individual to volunteer comments about the influence of religion on their life, presidential candidates do it all the time. It is quite another for someone being grilled at a Senate committee by senators who clearly are unhappy with her nomination to be forced to speak about her religiosity.

This is a moment to reiterate that there can be no religious litmus test for public officials seeking office and that surely includes judicial nominees whose fitness to serve should be based on the individual’s merit: intellect, ethics, experience and achievements.

The founders of this country took the no-religious-test-for-office theme so seriously that it was in the original Constitution. Feinstein and Durbin, in their language, seemed perilously close to violating that clause.

Still, there are mitigating circumstances. Barrett, then a professor at Notre Dame Law School, had co-published an article in 1998 entitled: "Catholic Judges in Capital Cases." In it, she raised difficult questions about when a believing Catholic, living with the obligation to follow church teachings, should or should not recuse herself in cases of capital punishment.

It is a nuanced analysis but it is heavily predicated on the idea that a good Catholic cannot in good conscience violate Church teachings against capital punishment.

During the course of the article, Barrett and her co-author make clear that elements of the nuance in Church teachings about capital punishment do not apply to the issue of abortion where anything supporting or abetting abortion is a clear and extreme violation of Church ethics and morality.

Had no such article appeared, the comments by the two senators in the hearing clearly would have crossed the line of a religious test for office. But the nominee herself had raised the matter in a profound way through this lengthy article and, to some extent, brought this line of questioning upon herself.

Still, with it all, one is left with an uncomfortable feeling about the whole episode. Particularly at a time when polarization characterizes our politics and religion is used as a tool for pushing political agendas. It would have been far better if Feinstein and Durbin had found better ways to understand where Barrett is coming from.

As Barrett herself notes in her article, appearances of bias are almost as important as bias itself. Feinstein and Durbin left an impression that it is Barrett's Catholic beliefs that are the problem rather than her judicial philosophy. This may or may not cross the line in violating the Article Six stricture, but it definitely enables those who want to see it that way to make a good case.

Religious freedom is a true source of strength for this nation. But that doesn’t mean that it is always easy to sort out how it plays out day to day.

Public figures should be particularly sensitive to these realities when they engage in official discourse on matters that touch on religious belief.

Jonathan A. Greenblatt is CEO and National Director of the Anti-Defamation League.